LABOR AND EMPLOYMENT LAW
SPORTS
FALL 2013 | VOL. 42, NO. 1
Clay v. U.S.: The Champ, the Court, and the Vietnam War
By Mark Risk
H
How a unanimous Supreme Court
came to reverse Muhammad Ali’s
conviction for refusing induction
into the armed forces is a story in
which the justices, as much as
the champ, are the protagonists.
In Muhammad Ali’s Greatest Fight,
Stephen Frears’s crisp 2013 HBO
film about Clay v. United States,
Justice John Marshall Harlan—
the conservative justice said to
have been persuaded by a law
clerk to change his preliminary
vote to affirm Ali’s conviction—is
the featured heavyweight.
Ali’s extraordinary talent, articulateness, and instinct for showmanship made him more than a
great athlete. A 2000 book by
journalist Max Wallace and Ali’s
long-time photographer Howard
Bingham serves as a reminder
that the 1960s, the period in
which he competed, began in the
shadow of the civil rights movement and ended in the context of
widespread opposition to the
Vietnam War, all of which contributed to making Ali an icon.
The nation still favored the
Vietnam War when Ali, who as
Cassius Clay had defeated Sonny
Liston for the heavyweight title in
1962 and then announced his
membership in the Nation of
Islam, was drafted. Ali’s boxing
prowess, combined with his
cocky attitude, may have had
something to do with his selection for service.
When Ali failed the Selective
Service’s analytical test, that
might have ended the issue. But
two years later, in a move many
thought was aimed at Ali, the
Selective Service loosened the
test requirements just enough
that he qualified. Ali’s public
statement that he “ain’t got no
quarrel with the Viet Cong”
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antagonized many Americans but
also contributed to the emerging
opposition to the war.
After he exhausted the local
draft board proceedings, Ali’s
application for conscientious
objector status moved to the Justice Department, where the hearing officer, a retired Kentucky
appellate judge, heard testimony
and recommended that the conscientious objector claim be sustained. The Justice Department
nevertheless recommended to
the draft board that the application be denied.
When Ali refused induction,
he was criminally charged, convicted by a jury, and sentenced
to five years in prison. The Fifth
Circuit affirmed, rejecting all of
his defenses, including his claim
that he was a minister in the
Nation of Islam.
Boxing authorities stripped
him of his title. Although his sentence was stayed pending appeal,
state boxing commissions would
not authorize any fights for him,
and, by revoking his passport, the
federal government prevented
him from traveling abroad to
fight, all during what should have
been the most productive years
of his boxing career.
In The Brethren, their 1979
book about the early years of the
Warren Burger Court, Bob Woodward and Scott Armstrong detail
the movement of Ali’s case
through the Supreme Court, relying on uncredited interviews with
law clerks and other court insiders. According to their account,
when the case reached the Court
in 1971, William Brennan was the
only justice who favored granting
certiorari. Although Brennan was
able to persuade several of his
colleagues that the Court should
Dr. Martin Luther King, an early
supporter, appears with Ali at the
federal courthouse in 1967. AP PHOTO
hear the case (perhaps because
of Ali’s prominence), it is not clear
that any other justice thought a
reversal might be appropriate.
Conscientious objector status
requires three findings: (i) sincere
opposition, (ii) to all wars, (iii)
based on religious belief and training. In its case before the Supreme
Court, the government focused
on the second element, arguing
that the Nation of Islam was not
opposed to all wars.
Justice Thurgood Marshall
recused himself because he had
been solicitor general when the
case began. At the conference
held after the oral argument, five
of the remaining justices voted to
affirm, and Chief Justice Burger
assigned the majority opinion to
Justice Harlan. Woodward and
Armstrong contend that in preparing his opinion, Justice Harlan
changed his view, concluding that
the Nation of Islam was, in substance, against all wars.
Suddenly, with Justice Harlan
joining Justices Potter Stewart,
William O. Douglas, and Brennan,
the vote was 4–4 at a time when
the Court still placed a premium
on speaking with one voice.
Woodward and Armstrong claim
that Justice Stewart proposed a
middle way: a narrow opinion
overturning the conviction on a
procedural irregularly, which
could not be used as precedent in
other conscientious objection
cases. The authors suggest that
the justices may well have been
concerned that a broad ruling in
Ali’s favor would have invited
other African-American men to
escape military service by joining
the Nation of Islam.
Now it was 8–0. The court
issued a per curiam opinion
throwing out the conviction on
the grounds that the draft appeal
board did not articulate its reasons for denying Ali conscientious objector status and the government had conceded that Ali’s
beliefs were sincere and based on
a religious belief, two of the three
criteria for establishing conscience objector status.
The books and the subsequent
film quietly suggest that the real
protagonist was the Vietnam War.
During the years that the Ali matter
was making its way through the
draft system and then the courts,
opposition to the war and, by
extension, sympathy with Ali’s
position had moved from the
periphery to the center of American politics and culture. It is
likely that Clay v. United States
would have been decided differently had it been heard just a few
years earlier. Q
Mark Risk ([email protected]) is
principal at Mark Risk, P.C., in New
York City and an editor of LEL.
Fall 2013
Labor and Employment Law 11
Published in Labor and Employment Law, Volume 42, Number 1, Fall 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
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